13 September 2010

Alienation of Affections Tort Lives in NC and MS

As noted here, North Carolina still routinely issues judgments (in this case a $5.8 million judgment) against people who break up marriages by entering into affairs with people who are married. (See also, in North Carolina, for example, here.)

[I]n fiscal years 2000–2007, there were an average of 230 alienation of affections filings in North Carolina per year — a bit over 0.5% of the number of all divorces. The tort is also recognized in Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah, but it seems to be often litigated only in North Carolina and (to an apparently smaller extent) in Mississippi[.]

Limitations On the Alienation of Affections Tort In Many States

Many of the states where the tort is not commonly used impose restrictions on it that make it less attractive. In Illinois, Hawaii and New Mexico, these limitations make it exceedingly difficult to prevail in an alienation of affections case and recover substantial monetary damages.

The standard is lower in Utah and South Dakota, which continue to have actively litigated alienation of affections suits, although not used as often as in North Carolina and Mississippi.

Support for the retention of the alienation of affections cause of action is not unanimous among state supreme court judges in any of these states.

Illinois

"Illinois only permits actual damages to be recovered in alienation of affection actions 740 Ill. Comp. Stat. Ann. 5/2 (1990) [from the linked case below from Mississippi]." Thus, it prohibits non-economic damages like pain and suffering, and punitive damages, in these suits.

Hawaii

The most recent (and only) appellate decision in Hawaii is Hunt v. Chang, 594 P.2d 118 (Hawaii 1979), which a case was dismissed on a motion for summary judgment because the person bringing the suit against his wife's lover failed to show in his prima facie case that: "The (plaintiff's) spouse must not have voluntarily accepted defendant's advances at the outset of the affair," and that "The (plaintiff's) spouse must not have actively contributed to the procuration by intentionally seeking the companionship and the affection of the defendant." Establishing that an affair involved an unwilling partner is a difficult matter.

The plaintiff in Hawaii must also affirmatively show as part of the cause of action a lack of marital fault.

New Mexico

[In New Mexico, courts have recognized] the common law action for alienation of affections which authorized a husband to sue another for interference with his supposed "right" to the undiluted affections of his spouse. See Thompson v. Chapman, 93 N.M. 356, 358, 600 P.2d 302, 304 (Ct.App.1979). This Court has previously expressed its "disfavor" with such claims. See id.; see also Hakkila, 112 N.M. at 177-78, 812 P.2d at 1325-26. In Thompson, 93 N.M. at 358, 600 P.2d at 304, we explained our reasoning for concluding that the common law claim of alienation of affections should be abolished in New Mexico. We observed that the claim "diminishes human dignity. It inflicts pain and humiliation upon the innocent, monetary damages are either inadequate or punitive, and the action does not prevent human misconduct itself. In our judgment, the interests which the action seeks to protect are not protected by its existence, and the harm it engenders far outweighs any reasons for its continuance.

- Padwa v. Hadley, 981 P.2d 1234 (N.M. App. 1999).

In Thompson, a motion to dismiss supported by affidavits prevailed on the grounds that the husband could not overcome a statement under oath from the wife that he assaulted his wife and there the relationship between them was dead before the new relationship began.

A 1991 New Mexico case cited in the Padwa ruling states that: "although the tort has not been formally abolished, our courts have expressed dissatisfaction with the tort of alienation of affection, which has features similar to the tort of outrage in the marital context."

The New Mexico Supreme Court noted in 1991 in the case of Lovelace Medical Center v. Mendez, 805 P.2d 603 (N.M. 1991), that the cause of action is viewed with disfavor in the state.

South Dakota

South Dakota does not permit insurance coverage for alienation of affections lawsuits, thus limiting a possible source of recovery. State Farm fire and Casualty Co. v. Harbert, 741 N.W.2d 228 (S.D. 2007). But, the alienation of affections suit, created by statute, remains good law:

South Dakota at one time made adultery a crime. See SDCL 22-22-17 and -18 (repealed by SL 1976, ch 158, § 22-8). These statutes were repealed in 1976. Yet, since 1877 we have also recognized a civil cause of action for alienation of affections. SDCL 20-9-7. In Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610, we upheld the continued civil cause of action as its statutory basis was still in force despite the fact the criminal liability had long since been repealed.

- Benson v. State, 710 N.W.2d 131 (S.D. 2006).

The Veeder decision in South Dakota was a fractured decision (2 voting for, one concurring but urging the legislature to repeal the law, one dissenting arguing that the bar was set too low in jury instructions). South Dakota's standard of relief is much less focused on misconduct by the spouse who was a party to the affair and the person suing than Hawaii and New Mexico.

South Dakota also limits punitive damage awards to 20% of the defendant's net worth, has relatively few divorce, has a small population, and has juries that tend to impose small jury awards in civil actions.

Utah

The Utah Supreme Court upheld in a 3-2 decision, the alienation of affections tort, but not the criminal conversion tort in 1991. Norton v. Macfarlane, 818 P.2d 8 (Utah 1991). Two justices wanted to keep both, two wanted to abolish both, and one split the difference. The swing justice noted that "it is not often that full responsibility for the breakdown of a marriage can be attributed with any great degree of assurance to one or the other of the parties, let alone solely to the conduct of a third person," and singled out violations of positions of trust by the defendant as a typical case.

Analysis

It is actually a crime to bring in court, or settle, an alienation of affections suit in Colorado.

The fact that North Carolina and Mississippi are places one associates with strong tort reform efforts makes this litigious approach particularly notable.

Mississippi's Supreme Court decided to retain the alienation of affects tort in a 2007 decision (5 justices supported it, 2 dissented, and 1 concurred that this was the law, while arguing in a concurrence that: "In my view, Mississippi should abandon the five other states which continue to fully recognize the antiquated common law tort of alienation of affections, and join the forty-two states who refuse to do so.").

There is no binding U.S. Supreme Court precedent on the constitutional validity of the tort, it has recently denied certiorari in a case raising the issue.